Wynnick v. Allen

Full title: NICHOLAS WYNNICK v. HOWARD ALLEN, ET AL

Court: Connecticut Superior Court, Judicial District of Ansonia-Milford at Milford

Date published: Jul 1, 2002

2002 Ct. Sup. 8421 (Conn. Super. Ct. 2002)

Opinion

No. CV00 00708047S

July 1, 2002

MEMORANDUM OF DECISION

HOLDEN, JUDGE.

The plaintiff, Nicholas Wynnick, is the owner of property located at 60 Prospect Street in Ansonia, Connecticut. The defendants, Howard and Anna Allen, are the owners of property located at 6 Moulthrop Street, which adjoins the easterly boundary line of the plaintiff's property. The plaintiff has brought this quiet title action, in one count, alleging that he owns an eight and one-half foot strip of land which runs along the common border to the properties.¹ The strip includes a grassed area, as well as a paved area which comprises a portion of the defendant's driveway. The complaint alleges that the plaintiff allowed the defendants to enter on and maintain the strip of land, but that the plaintiff still owns the land. The plaintiff seeks a judgment declaring that he is the owner of the eight and one-half foot strip and that the defendants have no interest in the land. The plaintiff also seeks to enjoin the defendants from claiming an interest in the land in the future. The defendants filed an answer, denying the allegations of the complaint. The defendants raised no special defenses and filed no counterclaims. The court heard testimony and received evidence on February 11, 2002.

1 General Statutes § 47-31 governs actions to quiet title. Practice Book § 10-3 provides that "[w]hen any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." Better practice by the plaintiff would have been to specify reliance on the statute. The court will consider pleading the statute to be directory, however, rather than mandatory. See Devita v. Esposito, 13 Conn. App. 101, 104, 535 A.2d 364 (1987).

"The essential elements of [a quiet title] action . . . are that the plaintiff claims title to the property and that the action is brought against such persons claiming an interest in the property that is adverse to that of the plaintiff." (Citations omitted.) Loeb v. Al-Mor Corporation, 42 Conn. Sup. 279, 286, 615 A.2d 182 (1991), aff'd, 224 Conn. 6, 615 A.2d 149 (1992). The plaintiff must prove its title in the disputed property by a preponderance of the evidence. Remington Investments, Inc. v. National Properties, 49 Conn. App. 789, 797, 716 A.2d 141 (1998). "To establish title, the party claiming title must rely on the strength of his own title, and not on the weakness of the title of another." (Citation omitted.) Mt. Maumee Partnership v. Peet, 40 Conn. App. 752, 757, 673 A.2d 127, cert. denied, 237 Conn. 924, 677 A.2d 947 (1996)

The court finds that the plaintiff has proven, by a preponderance of the evidence, that he has title to the strip of land in issue. The court has considered all of the testimony and evidence submitted by the parties, including the deeds submitted by plaintiff, the assessor's map and the class A-2 survey of the plaintiff's property prepared by Clarke and Pearson, Associates, Incorporated.² The evidence supports a finding that the disputed eight and one-half strip of land is included in the description of property as stated in the plaintiff's deed.

2 The court notes the following factors which detracted from both parties' presentation of this matter. The plaintiff took title through quit claim deed. The freehand drawing submitted by the defendants was considered by the court, but is not a survey. Neither party offered testimony from a licensed surveyor as to the ownership of the property in issue.

Every deed in the defendant's chain of title states that the defendant owns sixty feet, more or less, on Moulthrop Street. The court will not interpret the words "more or less," commonly used in boundary descriptions, to find that the defendant's property borders Moulthrop Street by an additional eight and one-half feet. To so find would increase the boundary, as stated in the defendant's deed, from sixty feet to sixty eight and one-half feet. The court notes that the use of the language, more or less, in deed descriptions is only intended to cover slight discrepancies and irregularities. See Loeb v. Al-Mor Corporation, supra, 42 Conn. Sup. 288; Russo v. Corideo, 102 Conn. 663, 129 A. 849 (1925). The terms are not intended to be used to increase unambiguous boundary dimensions.

In the complaint, the plaintiff stated that in June, 1999 the defendant, Howard Allen, threatened that he was claiming ownership of the strip of land through adverse possession. The defendants, however, never raised a claim of adverse possession by way of special defense,³ or, more appropriately, by filing a counterclaim that they were entitled to ownership of the property through adverse possession.⁴ The defendants also failed to comply with the dictates of General Statutes § 47-31 (d) which provides that "[e]ach defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived." But see Faiola v. Faiola, 156 Conn. 12, 14, 238 A.2d 405 (1968). As the defendants have failed to raise in their pleadings, by way of answer, special defense or counterclaim, the legal basis for any estate, interest or encumbrance that they may have in the property, the court cannot find, on the basis of the pleadings, an interest on behalf of the defendants. "Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein. . . . A judgment upon an issue not pleaded would not merely be erroneous, but it would be void." (Citation omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 160-61, 783 A.2d 1226 (2001).⁵ Any judgment by the court granting an estate or interest in the property to the defendant in this matter would be void due to the failure of the defendant to plead, in any manner, an estate or interest.

3 See Marshall v. Soffer, 58 Conn. App. 737, 739 n. 3, 756 A.2d 284 (2000).

4 See Marshall v. Soffer, 58 Conn. App. 737, 740 n. 4, 756 A.2d 284 (2000); Top of the Town v. Somers Sportsmen's Assn., Inc., 69 Conn. App. 839, 842 n. 2, ___ A.2d ___ (2002).

5 Kelley v. Tomas, supra, 66 Conn. App. 146 (easement by necessity was not raised in the pleadings as a special defense, so any judgment finding an easement by necessity would be void.); See also Francis v. Hollauer, 1 Conn. App. 693, 475 A.2d 326 (1984) (Plaintiff sued, alleging that he owned common driveway through adverse possession. Decision by trial court granting prescriptive easement was reversed. "Any claim of prescriptive easement was not within the issue presented by the pleadings and could not properly be adjudicated in this action." Id., 695.)

The court notes that some of the disputed eight and one-half strip of land comprises a portion of the defendant's driveway. The court also notes that there was testimony that the defendant's use and maintenance of the property exceeded twenty years. See General Statutes § 47-37. If properly pleaded and supported by the evidence presented, the defendants may be able to sustain, by a preponderance of the evidence, an action seeking an interest in the portion of the property used as their driveway. See Kelley v. Tomas, supra, 66 Conn. App. 146; Hoffer v. Swan Lake Assn., 66 Conn. App. 858, 786 A.2d 436 (2001).

CONCLUSION

The court enters judgment for the plaintiff and finds that the plaintiff is the owner of the eight and one-half foot strip of property in dispute. The court declines to enter the order sought by the plaintiff enjoining the defendants from claiming an interest in the property in the future.

The Court

By ___________________ Holden, J.